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The Miers Withdrawal:
So Harriet Miers has withdrawn her candidacy under what seems to be the Krauthammer cover — a move that President Bush was telegraphing pretty strongly over the last few days by repeatedly mentioning that obtaining White House documents was an important "red line" he absolutely would not cross. That's a relief.

  My immediate reaction is that the system worked. Harriet Miers is by all accounts a good person and a solid lawyer, but wasn't particularly well-suited for the unique environment of the Supreme Court. As I noted last week, I think the tipping point was sometime last Thusday or Friday, when it became clear on the Hill that Miers just wasn't going to be able to deliver the kind of performance at her hearings that she needed to deliver to get confirmed.

  The question now is who the President will pick as a replacement. It's impossible to know, of course: Who expected that Bush would select Miers? If I had to guess, though, the current political situation will push the White House to pick someone with broad and deep support on the Right who also won't cause a revolt among Democrats. To me that suggests someone like Michael McConnell or Karen Williams. (For my post making the case for McConnell, click here.)
Phil (mail):
My faith in God is restored.
Bush should appoint Mary Ann Glendon.
10.27.2005 11:05am
David Maquera (mail) (www):
I agree with Orin, Mike McConnell is the best choice for justice of the SCOTUS. BTW, delenda est Syria.
10.27.2005 11:09am
Lamont Cranston:
I don't think Bush has much of a choice but to throw some red meat at the base. Now that they've tugged on his leash he'll go for Brown, I think.
10.27.2005 11:11am
Richard Bellamy (mail):
I guess his only safe pick now is James Dobson!
10.27.2005 11:12am
Oli:
The system worked? Exactly what "system" are you talking about? 24-hour news channels, incessant blogging, and chicken-little-the-sky-is-falling predictions from conservatives?

If the Dems ran off a Bush choice like this, I am willing to bet conservatives would be screaming bloody murder, and deploring a system that makes good people think twice about going through the nomination process.

I have no reason to defend Miers, and in fact think she was not a very strong candidate. But the system would have worked if she had gotten her hearings and received an up-or-down vote. Getting chased off by Krauthammer, Bill Kristol, and the conservative bloggers does not equal a great system.
10.27.2005 11:13am
Daniel Chapman (mail):
The system worked because a mistake was corrected.
10.27.2005 11:17am
Steveo987 (mail):
Warmongers delenda est.
10.27.2005 11:17am
Unamused:
Delendenda est delenda.
10.27.2005 11:24am
Scott Scheule (mail) (www):
McConnell.
10.27.2005 11:24am
countertop (mail):
How about Fairfax County General District Court Judge Ian M. O'Flaherty

Don't know much about him - I was in front of him once, on my one and only case in Fairfax - but he certainly seems to have a clue.
10.27.2005 11:27am
smwywh (mail):
Oli's right. Can't wait for McConnell, 'cause I really miss chaplain-led prayers at high school sporting events, and I don't think voucher programs and faith-based initiatives have been endorsed strongly enough by the Court. Let's see if the Court can set a record and overrule the McCreary County decision by June, sidestepping Hamdan, of course.

Bring on the great defender of RFRA!!
10.27.2005 11:28am
Richard Bellamy (mail):
Assumedly, this will push things off far enough that O'Connor will get to actually rule on a lot of the cases that she's currently hearing.
10.27.2005 11:33am
david blue (mail) (www):
Unfortunately for McConnell, he's a white male. Plus, do you really think Bush is having warm fuzzy thoughts about his so-called "base" right now - that would be the ones who just delivered to him the greatest humiliation of his presidency (at least until Rove and Libby get indicted)? Gonzales.
10.27.2005 11:38am
Simon (391563) (mail) (www):
Smwywh-

[***PERSONAL INSULT DELETED by Eugene Volokh.*** Folks, please be polite to each other.]

As the Amar brothers pointed out:
McConnell opposed state-sponsored graduation prayers at public school commencements even before the Supreme Court struck down this practice, 6-3, in the 1992 case of Lee v. Weisman. McConnell has likewise publicly endorsed the result of the more recent Santa Fe Independent School District v. Doe case, which invalidated (by a similar 6-3 vote) government-sponsored prayer at high school football games.


I'm no fan of most conservative jurists, but McConnell is far and away the best choice of the bunch. And he's the only one of Bush's potential nominees for whom I'd be willing to make a case for appointment by a Democratic president.
10.27.2005 11:38am
Pro Libertate (mail):
Brown is who I'd like to see nominated, if for no other reason than we might see several senators go down in fits of apoplexy during her hearings. Besides, this administration really needs to throw a bone to the more libertarian/limited government elements of the GOP, unless they'd like 2006 to become an inverse of 1994.
10.27.2005 11:45am
Trespass (mail):
Well, if the stage is not yet set for Ann Coulter, there are others more sagely resurrecting Ted Olson's name as a promising candidate... hard to see anyone Left or Right opposing him.
10.27.2005 11:45am
sleeper (mail):
Not to be flippant or insensitive to what can only be characterized as a tragedy in this man's life, but if Ted Olson is nominated and subsiquently confirmed, would he have to remove himself from hearing terrorism cases before the court, given that his wife was murdered by terrorists?
10.27.2005 11:48am
guest post (mail) (www):
Eugene for SCOTUS!
10.27.2005 11:48am
pct:
Bush will nominate Ronald Dworkin. Make the base beg for Miers back.
10.27.2005 11:57am
AnandaG:
Kozinski FTW!
10.27.2005 11:59am
Lawbot2000:
VIET DINH OR MIGUEL ESTRADA
10.27.2005 12:14pm
Brian G (mail) (www):
McConnell would be a terrific choice. Janice Rogers Brown would be the better one. After the Miers debacle, nominating Brown would make many of us forigve and forget instantly.
10.27.2005 12:22pm
Dem:
Just an FYI: a Williams nomination may very well cause a revolt among us Dems. I honestly don't know how its become CW that she is safe from Dems--once you look at her opinions, its pretty clear that she is a highly results oriented conservative. I believe there is a case where Luttig called her out for refusing to follow precedent. As a Dem, I'd be happy (given that the nominee will be a Republican) with McConnell, Luttig, Duncan (a 4th Circuit republican female african american judge), or a number of others. Williams would be at the bottom of my list.

By the way, here's a quick question for all you anti-affirmative action Republicans out there: why is it that, for Republicans, affirmative action at colleges is a moral outrage of the highest order but its totally fine if Bush feels the need to appoint a woman over better qualified men to the SC? This is a serious question.
10.27.2005 12:28pm
Unamused:
By the way, here's a quick question for all you anti-affirmative action Republicans out there: why is it that, for Republicans, affirmative action at colleges is a moral outrage of the highest order but its totally fine if Bush feels the need to appoint a woman over better qualified men to the SC? This is a serious question.

Dem, where have you been for the past month? Not in the land of the living, it seems.
10.27.2005 12:29pm
Bob Bobstein (mail):
Let me just say, as a Democrat, crap.

I think that Brown would trigger the nuclear option. That would cripple Bush's legislative agenda for the rest of his term... but does he have an agenda anymore, now that no one is talking about Social Security?

I'll join the McConnell prediction chorus. He'll get confirmed, and various Republican constituencies will be pleased.
10.27.2005 12:30pm
Steveo987 (mail):
For what it's worth, Judge Williams is married to a "flaming liberal" plaintiffs' lawyer.
10.27.2005 12:34pm
Matt Barr (mail) (www):
If you take away the abortion stuff, much of McConnell's record -- on things like the Fourth Amendment, religious liberty (the kind liberals like, i.e. small sects that take drugs), and Bush v. Gore -- would strike you as awfully "progressive." The poster going on about a return to state-sponsored prayer under him or whatever is a bit ill-informed.

I think the President is more likely than not to stay "outside the monastery." Maureen Mahoney should be a top candidate, and if he is considering Ted Olson, he can have a non-judge who's also red meat for the base.
10.27.2005 12:46pm
Matt.Bodie (mail):
I may be alone on this, but I think (a) Dems should want a very conservative nominee (better for fundraising; nominee could alienate swing voters), (b) Dems should want the nuclear option triggered (it's anti-democratic; it'll help the Dems the next time they have a Senate majority), and (c) Bush will not either of these things to happen, so he'll nominate McConnell or another moderate conservative.
10.27.2005 12:52pm
IB Bill (mail) (www):
Robert Bork. If we're gonna get into a fight, why not a big fight?
10.27.2005 12:55pm
GWULAW:
Remind me again just how McConnell qualifies as a moderate conservative?
10.27.2005 12:58pm
nobody (mail):
Someone above suggested Viet Dinh. If he ever had a chance of being appointed by GWB, he probably blew it with his op-ed in today's Wall Street Journal.

Also, a number of people above suggested Ted Olsen. The STATED (though obviously pretextual) reason for the Miers withdrawal is a purported concern over executive privilege--the White House doesn't want to turn over documents prepared by its lawyer. Ummm...Wouldn't Olsen have the same problem? He was SG during the GWB's first term. Hard to see how (a) the administration could turn over documents without looking foolish or (b) the Senators who demanded Miers' documents could avoid demanding the same documents with respect to Olsen.
10.27.2005 12:59pm
Rob Johnson (mail):
How about JOHN KYL? The guy understands the Scalia/Thomas view of the constitution and is very articulate. He also is well liked by Republicans and Democrats.

I think John Kyl needs to be added to the list of candidates that would rally conservatives without alienating Democrats.
10.27.2005 1:00pm
The new guy (mail):
By the way, here's a quick question for all you anti-affirmative action Republicans out there: why is it that, for Republicans, affirmative action at colleges is a moral outrage of the highest order but its totally fine if Bush feels the need to appoint a woman over better qualified men to the SC? This is a serious question.

Answer to your first question, here's a hint: It has something to do with the Civil War and three Constitutional Amendments.

Answer to your second question / hypothetical: I doubt that the Republican base uniformly thinks that it's "totally fine" that Bush appoints a woman over a better qualified male candidate. That being said, and leaving aside the fact that there are a number of highly-qualified female candidates (Janice Rogers Brown, Maureen Mahoney, &others), Bush has political considerations to consider. The Republicans do have to answer to the voters periodically, and a number of them find the race/gender of political appointees significant.
10.27.2005 1:03pm
Nicholas Buccola (mail):
McConnell makes the most sense at this point. Bush showed his committment to diversity by nominating Miers. Now, the time has come to go straight merit and confirmability. McConnell would be a slightly more controversial version of Roberts. He is extraordinarily well qualified, brilliant, and has respect from both sides (at least in academic circles). I've already heard Ted Olson floated from a couple of different places. He is brilliant and qualified, but does anyone remember his SG hearings? They didn't go so well. Questions about his role in "vast right wing conspiracy" and Bush v. Gore. Sounds like trouble to me. Does anyone really think there would be a political backlash if Bush did not nominate a women or racial minority? At this point in the game, qualifications, brilliance, and confirmability are the name of the game.
10.27.2005 1:03pm
therut (mail):
DEM---------I was sicked by the idea that a "woman" could be picked due to affirmative action. I do not support AA. As a woman I find it appauling.
10.27.2005 1:04pm
Steve:
A Gonzales nomination is virtually impossible now, given the stated reason for Miers' withdrawal.
10.27.2005 1:08pm
Paul N (mail):
I'm glad Miers was withdrawn and I thank bloggers and others who fought the nomination. I think it's crucially important that we were able to do this - with majorities of Republicans in the House and Senate, the odds were definitely against us.

It seems to me that there's a good chance that Bush is, at best,indifferent on abortion (witness his two SCOTUS nominees to date), so McConnell seems an unlikely pick to me. I agree with Orin, however, that Bush is more likely to appoint an approvable candidate than one to "appease his radical right base".
10.27.2005 1:10pm
sadandbeautiful:
I totally agree with Oli's criticism. Mr. Kerr, as a lawyer and a law professor, you aren't allowed to frivolize the term "system", especially when it refers to the designation of a Supreme Court Justice. Ms. Miers' resignation is strictly based on political reasons, not technical, as you try to convey. I'm not saying that this, although unfortunate, isn't very common. What I'm saying is that someone who wishes to be recognized as a jurist, and not just another political pundit who happens to also be lawyer, can't fall for the same kind of pseudo argumentation, at least not when the issue is as important (perhaps the most important in the legal profession?) as this one.

And, by the way, in my opinion the "question now" is: shouldn't the President admit his mistake (i.e. not standing up to his own decisions and, by doing so, discrediting the institution) before chosing a replacement? I think that all sides, democrats and republicans, should demand this, for the sake of the "system".
10.27.2005 1:25pm
sammler (mail) (www):
I believe that the threshold of conservatism which would trigger a Democratic "revolt", as you put it, is so low that this revolt can be considered a certainty. More here.
10.27.2005 1:26pm
Anon7:
I agree with Orin about the need for a non-controversial and stellar candidate, but that assumes that Bush is a reasonable person. Personally, I think he'll go hard right with Estrada or Brown.
10.27.2005 1:28pm
Crank (mail) (www):
Amen to McConnell. He would actually top Roberts, and he's a fight Bush can win, or make the Dems look bad in the process for opposing such a brilliant and distinguished scholar. His Establishment Clause and Roe scholarship would win him friends with the evangelicals who backed Miers. Bush recall the lesson that the best way to win arguments is to start out by being right.

As to Bush v. Gore, read his Slate posts - McConnell was very harshly critical of the Florida SCt's runaway activism. I suspect that if they'd been on the Court he and Roberts would both have joined the Rehnquist/Scalia/Thomas opinion on Article II.
10.27.2005 1:55pm
Marcus1:
The Krauthammer excuse doesn't even make sense. You want information that I'm not going to give, so I'm withdrawing the nomination? How about just saying "no"?

I guess if you're willing to accept it as a blatant fabrication, that's great. If I were at the McClellan press briefing, though, I'd ask him if Mr. Bush is so spineless that he withdrew a great nominee simply to avoid having to take a principled stand.

I find it interesting that nobody seems to care if Bush lies.
10.27.2005 2:00pm
cathyf:
Hey, if we can't have Bork, could I throw in my vote for Douglas Ginsberg? In 20 years inhaling has turned into an asset...

cathy :-)
10.27.2005 2:01pm
Shelby (mail):
McConnell's more conservative than I'd like, but I can live with that. Ditto Olson, though I know less about his personal views. I think there's a fair chance Bush will stick with a woman, but one with judicial experience -- probably not Janice Rogers Brown, due to the fight Democrats have signaled (which is a pity; I like her best out of the names widely touted).

Let me add one more lonely voice to the small chorus calling for Kozinsky's nomination!
10.27.2005 2:02pm
California Conservative (mail) (www):
Our SCOTUS prediction: Edith Jones

Giving all conservatives what they've been crying for...
10.27.2005 2:05pm
Aaron:
I think a perfect fine choice would be Mass Chief Justice Margaret Marshall ;-)

That said, W hates to lose at anything. Look for the most controversial choice next:

Nathan Hecht.
10.27.2005 2:05pm
Harpo:
I don't think the grownups in the GOP want a world war over abortion at this point in time.


We'll see.
10.27.2005 2:10pm
Eliza (mail):
What we need now is a fierce and articulate advocate for originalism, someone who can use the hearings to make the case for liberty to the American people. The nominee must explain that our Constitution is a contract between us and our government that can only be modified by us, through amendment, not by the government through its judicial wing.

The only way to reclaim our birthrights is to explain how the government has systematically taken them from us, and to convince the people we must get them back. Reagan understood that. This is no time for sneaking, obfuscation, and slippery answers. This is the time for a champion of liberty. This is the time for Janice Rodgers Brown.
10.27.2005 2:20pm
Thorley Winston (mail) (www):

By the way, here's a quick question for all you anti-affirmative action Republicans out there: why is it that, for Republicans, affirmative action at colleges is a moral outrage of the highest order but its totally fine if Bush feels the need to appoint a woman over better qualified men to the SC? This is a serious question.


Who said it was? I was hoping for Michael Luttig.
10.27.2005 2:21pm
Thorley Winston (mail) (www):

I may be alone on this, but I think (a) Dems should want a very conservative nominee (better for fundraising; nominee could alienate swing voters), (b) Dems should want the nuclear option triggered (it's anti-democratic; it'll help the Dems the next time they have a Senate majority), and (c) Bush will not either of these things to happen, so he'll nominate McConnell or another moderate conservative.


Yes you are alone on this because there is nothing "antidemocratic" about a nominee who has enough votes to be confirmed receiving an up or down vote.

As far as a showdown over the Byrd option goes, two of the Gang of Fourteen (Warner and Graham) are already on the record as saying that they would consider a filibuster of the President's SCOTUS nominee to be a breach of the Deal* and if it should happen, they would feel free to vote to end judicial filibusters.**

* But of course as we all know, Democrats already breached the deal with Judge Owens when one of the seven Democratic signatories failed to vote for cloture.

** Besides which, no one seriously thinks that the next time we have a Democrat Senate with a Democrat President that they're going to hesitate for a moment to pull the trigger on ending judicial filibusters.
10.27.2005 2:26pm
kien:
well, since no one else has said it yet, let me just throw out my vote for a Justice Judith Sheindlin.
10.27.2005 2:40pm
sleeper (mail):
With the current confligrations in the Republican party (Delay indictment, possible Karl Rove/Libby indictment, GSA Senior exec. indictment, Frist financial troubles, and the whole Miers rift in the party), I think the Republicans look to nominate a very conservative candidate which will polarize the Senate along partisan lines. This will satiate the Conservative wing of the party, who will feel that the White House is finally living up to it's promise to nominate conservative justices, and it will unite the Republican party against the Democrats, thus bringing their broad base back into the fold.
10.27.2005 2:48pm
JA:
What about Solicitor General Paul D. Clement? He has the Roberts pedigree (Magna - HLS) and conservative credentials (clerked for Scalia). He has obviously argued before the USSC several times. Perhaps his age is the drawback. I did not see his DOB on his official bio.

What about Clement? He is another Roberts, no?
10.27.2005 3:06pm
David M. Nieporent (www):
The Krauthammer excuse doesn't even make sense. You want information that I'm not going to give, so I'm withdrawing the nomination?

Yes. What doesn't "make sense" about that? You demand X as a condition precedent to approving the nomination. I won't do X. Therefore, the nomination can't be approved. Therefore, it will be withdrawn.

How about just saying "no"?

He did. That's why the nomination would have to be withdrawn.

I guess if you're willing to accept it as a blatant fabrication, that's great. If I were at the McClellan press briefing, though, I'd ask him if Mr. Bush is so spineless that he withdrew a great nominee simply to avoid having to take a principled stand.

And McClellan would point out that (a) he didn't withdraw anybody; Miers withdrew herself, and (b) what's with the "avoid having to take a principled stand"? It's consistent with taking the principled stand. (You're confusing what the "stand" is. It's not "Nominees must be confirmed even without any documents." It's "These documents are confidential.")
10.27.2005 3:12pm
Joe Jackson:
Good, now Bush can get down to business and nominate a real candidate like Jones or Batchelder or Luttig.
10.27.2005 3:13pm
Elvis, Esq. (mail):
I find these suggestions, from both left and right, that Bush has somehow been "brought to heel" by his conservative base very curious. Since when does Bush operate like that? He is famous for doing what he personally believes rather than what people tell him to do.

I see an impending "be careful what you wish for" moment.
10.27.2005 3:38pm
Dave-TuCents (www):
I see three ways Bush can go from here, Stubborn, Petulant and Thoughtful.

Stubborn Bush will now follow up by picking a tougher crony to hand it to. Expect an Alberto Gonzales to get the nod.

Petulant Bush responds to his critics by giving them just what they want, then fails to back it up. Expect a Janice Rogers Brown to be hung out to dry with no support.

Thoughtful Bush goes for a strong conservative candidate that can win, then starts hammering on opponents like he was hammering on allies last week. Look for a Douglas Ginsburg or a Michael McConnell to get the nod.

I'd love to be wrong and see Bush nominate and fight for Brown, but Bush has shown very little spine in 5 years so I don't expect him to.
10.27.2005 3:47pm
Justin (mail):
I agree that the Dems will/should now filibuster anyone whose to the right of Ed Prado (that includes McConnell, incidentally). This is because the right's response to Miers seems so much like "kowtowing to the extreme" that rather than an Article III debate, the public policy debate following the story will read out to be one of whether the Republican party is now in the hands of ultraconservative activists.

The media loves contraversy, they love a juicy story, and most importantly, they love smearing people. Getting them to pull a Kerry on some of the smaller dogs that geared up against Miers will do incredible damage to the Republican party in 2006. The idea that the qualifications even matter now will be lost, esp. given that Bush is now going to be forced to nominate someone who has a paper trail, and thus has said at least one contraversial thing.

Finally, it makes Bush look even more pathetic, having failed at his major political crisis, failed at his first nominee, and then failed in his second. In fact, it seems like a filibuster is the only way to prevent the GOP from coming out unscathed from the circus that has erupted since the nomination first was made.

Of course, that being said, knowing Dems, this means they'll give Luttig or even Estrada an up or down vote, just to screw themselves.
10.27.2005 3:48pm
Marcus1:
David,

Did 51 senators swear under oath that they would reject Miers without these documents? Of course not. A few of them demanded the documents, just as they did with Roberts, where they were duly ignored, just as they easily could have been here.

This nomination wasn't going to be rejected for lack of documents. You actually believe this? Bush didn't take a stand here! He capitulated without fighting -- according to him. He said, "Oh, you want documents? I guess I'll pick somebody else then." You call that leadership?

Taking a stand (against the 3 people who demanded these documents) would have involved going through and demanding a vote in their absense. Why wasn't that possible?

Since you only added that it was Miers' own decision as an afterthought, I'm guessing you see through that as much as I do. Of course, if you believe she insisted, then there's nothing the White House could have done. In any case, considering that Miers' job is to promote Bush's policies, I think it's patently obvious the whole thing was orchestrated.
10.27.2005 3:59pm
Kurt:
Dave, while I've certainly got complaints about Bush, I think he's shown a lot more spine than any of the other occupants of the Oval Office since Reagan. In this case, he has a chance to correct a mistake. While I'd love to see what happens if Brown is nominated, I expect to see a more prudent choice such as McConnell (or perhaps as some of the commenters at Althouse have been suggesting Mahoney or even Sykes) because he stands to gain more by nominating a conservative who can pass through without triggering the "nuclear option."
10.27.2005 4:00pm
Feisty:
Ann Coulter.

I don't know what kind of justice she'd make, but her hearings would sure be entertaining. =)
10.27.2005 4:17pm
Kurt:
If you're going to go with a conservative female lawyer who's a talk show host, then I'd recommend Laura Ingraham over Ann Coulter. Ingraham even clerked for Clarence Thomas after Thomas was appointed to the Supreme Court. And the hearings would likely be even more entertaining than Ann Coulter's.
10.27.2005 4:44pm
Hank:
"I think it's patently obvious the whole thing was orchestrated." Of course, and Andrew Sullivan's blog has the details. How can Bush think that he will save face when everyone knows that he's lying when he says that Miers withdrew? He would have saved face by saying that, because of the lack of support for Miers, he regrettably is withdrawing the nomination. Of course, it's absurd to imagine that a politician would tell the truth, but that doesn't mean that the media (Andrew Sullivan aside) has to play along.
10.27.2005 4:45pm
ANM (mail):
So exactly who are the libertarian justices, besides Brown? Also, do libertarians as a group appeal to Senate democrats at all?

I want someone who is anti Roe but pro choice, one that would vote on principle (Thomas) and not on outcome (Scalia), and someone who favors personal liberty in all forms, economic and civil, over federal and state's rights.

About affirmative action: The whole debate about affirmative action is so convoluted because its advocates imply that striking down affirmative action would ban it. Few people stop to think and say, maybe we should just leave that decision up to colleges? You CAN advocate both AA and its repeal without paradox. I suspect colleges would be against repealing it though, as they may be forced to compete with the few colleges who thereafter opt not to practice AA, like how the French want to enact global labor standards.

Question: Is it possible to strike down anti-discrimination laws via the scotus? What exactly does free assembly mean? Does that not apply to/not mean freedom of contract? To assemble a company as you choose?
10.27.2005 5:28pm
Perseus:
Does this mean that Miers will return to her previous position where she would play a key role in vetting the nominee to replace her?
10.27.2005 6:30pm
Daniel Chapman (mail):
I have a feeling the nominee is already vetted and decided upon, perseus.
10.27.2005 6:35pm
eddie (mail):
Can someone really explain to me what is meant by the "system worked" in this particular case. If anything this proved that the system is irrelevant.
10.27.2005 7:31pm
David M. Nieporent (www):
Marcus:
This nomination wasn't going to be rejected for lack of documents. You actually believe this?


An ordinary nomination wouldn't be rejected for lack of documents. The nomination of someone with precisely zero paper trail -- no judicial opinions, no law review articles, no meaningful publications or non-ghostwritten magazine columns -- on the other hand, is a quite different story.

In the case of Roberts, the Senate had tens of thousands of pages of documents. Asking for more documents was a mere smokescreen, an attempt by Democrats to (a) find a flimsy excuse not to vote for him, or (b) find the one smoking gun where he said something racially insensitive that could be used to Bork him.

In the case of Miers, the documents were actually needed just to find out something about her.

---------

ANM:
So exactly who are the libertarian justices, besides Brown? Also, do libertarians as a group appeal to Senate democrats at all?


Kozinski and no, respectively. I think Democrats would sell abortion down the river before they gave up the expanded view of the commerce clause.
10.27.2005 7:44pm
Marcus1:
David,

An argument can be made for anything. Do you believe that's why she withdrew? You didn't answer that question. Do you think Miers withdrew as a principled stand?

I mean, sure, you can spin it as "There were never going to be enough documents to overcome all the evidence that she's incompetent." That's not really a document problem though.

If you accuse the Democrats of using documents as a cover now, I'm afraid it's going to sound a little like hypocrisy. For that matter, I think Bush has lost the right to make that claim as well.
10.27.2005 9:37pm
Shelby (mail):
Marcus1,

Speaking as someone who agrees with David, I do not "think Miers withdrew as a principled stand". She was almost certainly told to withdraw her nomination; I don't think she has the imagination to do it on her own. Several media accounts of events on Wednesday and yesterday back this up.

The documents were indeed a cover with Roberts, but were a real problem with Miers. The "hypocrisy" (or, arguably, inconsistency) lies with the Democrats who made such a fuss over the need for more of Roberts' docs. It's the old story of the kid who cries "wolf"; this time the wolf was real. Fortunately for the feckless kid, a grownup was nearby with a shotgun.
10.28.2005 2:01pm
Nony Mouse:
*sigh*
I was relieved when Miers withdrew, for whatever reason. I honestly did not feel like she was highly qualified for the job at hand.
Now can we at least all agree that, no matter the political affiliation of the president, judicial appointees ought to be well-versed in the constitution, concise and clear in written communication, and familiar with the decisions, movers and shakers in the SCOTUS?
10.28.2005 2:26pm